Backlogs in America's Immigration Courts

By Dan Cadman on September 15, 2014

On September 11, Syracuse University's Transactional Records Access Clearinghouse (TRAC) issued a press release noting that the backlog in U.S. immigration courts had increased to 408,307 as of the end of August. That is astounding: a relatively small court system with a backlog approaching a half million cases.

But the subject line of TRAC's release also caught my attention: "Immigration Offenses Account for 80% of Immigration Court Deportation Orders".

Clearly the folks at TRAC think that's objectionable, because the first paragraph of their release says this:

Immigration Court judges have ordered 82,878 individuals deported so far this fiscal year, according to the latest data as of the end of August. But in only 16,375 of these cases, about one out of every five, had the government sought the removal order because of criminal or other activity that posed a threat to public safety; the remainder involved various immigration charges.

To my way of thinking, saying that immigration offenses account for 80 percent of deportation orders is stating the obvious. It's like saying that 80 percent of the highway patrol's summonses and arrests are for road and traffic violations.

I understand what the folks at TRAC are implying: that notwithstanding the pronouncements of the administration, interior enforcement agents at ICE (Immigration and Customs Enforcement) are being told to focus their priorities on serious criminal offenders. But they miss the point. There are significant reasons that most of the cases being heard by EOIR (the Executive Office for Immigration Review, a division of the Justice Department that houses the nation's immigration courts) relate solely to immigration offenses.

The first is that, now more than ever, even Border Patrol agents are strongly discouraged from using legal mechanisms to expel recent border crossers without resort to immigration hearings — for example, through administrative expedited removal, and reinstatements of prior final orders for those aliens who have been deported previously and returned (which recent studies show constitute more than quarter of the apprehension workload). Consequently, their apprehensions are processed for court hearings in a system so burdened it is teetering on collapse.

Because they are focused immediately at the border to interdict aliens attempting to cross, Border Patrol apprehensions will inevitably be weighted toward immigration violations, not criminal offenses. And not unsurprisingly, Border Patrol apprehensions are the lion's share of all immigration arrests. Consider this in light of the months-long surge of tens of thousands of illegal aliens crossing the border into the Rio Grande Valley and one immediately gets a sense of the daily reality for our nation's border agents.

Further compounding the problem is that more aliens than ever before — many of them coached by smugglers and family members before even setting foot in the United States — are asking for asylum. When this happens, it is almost inevitable that their cases will land inside the immigration courts, thus further clogging the system, which TRAC is right in assessing is collapsing under the strain. And the administration has done nothing to curb abuse of the asylum system; quite the contrary.

Congress established an expedited removal system that is outside the purview of EOIR in recognition of the mismatch between the volume of border crossers and the capacity of immigration courts to hear all of the cases they would generate. Likewise, final order reinstatement cases.

The problem is that the administration refuses to permit its officers to take advantage of these tools. As with so many immigration enforcement matters, it seems determined to force a catastrophic failure of the immigration courts.

Which leads us back to the night-and-day difference between TRAC's excellent ongoing analyses versus its sometimes shaky understanding of the reasons things are as they are. That's the duality of TRAC — they do excellent, timely work in alerting the public to make sure we know what's going on behind the big screen of the Obama administration, but then muddy the waters with transparently biased pronouncements.